United States v. Orm Hieng

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-10401

Plaintiff-Appellee, D.C. No.

v.  1:07-cr-00243-

ORM HIENG, OWW-2

Defendant-Appellant.

 OPINION

Appeal from the United States District Court

for the Eastern District of California

Oliver W. Wanger, Senior District Judge, Presiding

Argued and Submitted

August 30, 2011—San Francisco, California

Filed May 11, 2012

Before: J. Clifford Wallace, Marsha S. Berzon, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Wallace;

Concurrence by Judge Berzon

5063

5066 UNITED STATES v. HIENG

COUNSEL

Edgar Eugene Page, Page & Page Attorneys at Law, Sacra-

mento, California, for the defendant-appellant.

UNITED STATES v. HIENG 5067

Benjamin B. Wagner, United States Attorney; Laurel J. Mon-

toya (argued), Assistant United States Attorney, Fresno, Cali-

fornia, for the plaintiff-appellee.

OPINION

WALLACE, Senior Circuit Judge:

Orm Hieng appeals from his conviction and sentence (1)

for conspiring to manufacture and distribute more than 1,000

plants of marijuana and (2) for manufacturing and cultivating,

and aiding and abetting the cultivation of more than 1,000

marijuana plants. Hieng was convicted by a jury and sen-

tenced by the district court to ten years’ imprisonment, the

minimum sentence under 21 U.S.C. § 841(b)(1)(A)(vii).

Hieng moved for relief from the statutory minimum under the

“safety valve” of 18 U.S.C. § 3553(f), but failed to persuade

the district court that he had established the facts necessary to

qualify for relief.

Hieng raises several issues in his appeal. First, he contends

that the district court erred by allowing a law enforcement

agent to testify regarding statements Hieng made through an

interpreter during a post-arrest interview. He also argues that

the district court erred in admitting testimony regarding the

number of marijuana plants found at the property where he

was arrested. Hieng contends further that the district court

erred at sentencing in finding that Hieng had not truthfully

provided all the information in his possession to the govern-

ment, thereby resulting in the denial of safety valve relief.

Finally, Hieng argues that cumulative error resulted in an

unfair trial. We have jurisdiction under 28 U.S.C. § 1291. We

affirm the conviction and sentence.

I.

To the extent objections were preserved for appeal, we

review the district court’s evidentiary rulings for abuse of dis-

5068 UNITED STATES v. HIENG

cretion. United States v. Stinson, 647 F.3d 1196, 1210 (9th

Cir. 2011). We review evidentiary rulings to which no objec-

tion was made for plain error. United States v. Chung, 659

F.3d 815, 833 (9th Cir. 2011). On plain error review, we can-

not provide Hieng relief unless he

demonstrates that (1) there is an “error”; (2) the error

is “clear or obvious, rather than subject to reasonable

dispute”; (3) the error “affected the appellant’s sub-

stantial rights, which in the ordinary case means” it

“affected the outcome of the district court proceed-

ings”; and (4) “the error seriously affect[s] the fair-

ness, integrity or public reputation of judicial

proceedings.”

United States v. Marcus, 130 S. Ct. 2159, 2164 (2010), quot-

ing Puckett v. United States, 129 S. Ct. 1423, 1429 (2009);

see also United States v. Olano, 507 U.S. 725, 731-37 (1993).

We review the district court’s factual findings at sentencing

for clear error. United States v. Real-Hernandez, 90 F.3d 356,

360 (9th Cir. 1996). We will not disturb its findings unless

they are without foundation. United States v. Ajugwo, 82 F.3d

925, 929 (9th Cir. 1996).

II.

On August 28, 2007, detectives of the Fresno County Sher-

iff’s Department discovered a large marijuana growing opera-

tion in a vineyard behind a residence in Fresno, California.

They discovered marijuana plants growing among the grape-

vines in approximately fifteen to twenty rows in the vineyard.

During the investigation, detectives also discovered marijuana

plants growing inside the residence.

After discovering the marijuana plants in the vineyard,

detectives saw a car leave the property, circle the area, and

return to the residence. They stopped the car and found plant-

growing paraphernalia on the driver, Lem Phin. As they

UNITED STATES v. HIENG 5069

investigated the property, detectives found Hieng sitting in a

chair under a tree outside the house. Inside the house, investi-

gators discovered items of identification for both Phin and

Hieng.

Fresno County Sheriff’s Department detectives simulta-

neously eradicated and tallied the plants in the vineyard.

Detectives who participated in the effort testified that they

eradicated the plants by going up and down each row, pulling

or cutting marijuana plants, and keeping a mental tally of the

number eradicated. When they finished pulling plants in a

row, they gave the plants to a member of the team who loaded

them on a truck, and gave their tally to Detective Jensen.

None of the detectives who testified remembered the actual

number of plants that they had eradicated, but they testified

that they gave the accurate number to Detective Jensen and

saw him record the number they reported.

Detective Jensen testified that he kept an accurate tally of

the plants he counted and of the numbers reported to him by

the other detectives. He testified that he added all the tallies

manually, verified his addition, and entered the final tally in

his report. The final tally following this method was 1,039

plants growing in the vineyard and 70 plants growing inside

the house, for a total of 1,109 plants.

The thrust of Hieng’s trial defense was that he did not

know that marijuana was being grown at the site. He testified

that someone named Prasit had offered him $800 a month if

he would sign the lease for the property and stay at the house

at night. He testified that he never entered the vineyard and

that he did not know there was marijuana inside the house

because of his poor eyesight.

The government presented the testimony of Special Agent

Kunkel of the United States Drug Enforcement Administra-

tion who testified that on July 2, 2008, he interviewed Hieng

using an interpreter named Rithy Lim. Kunkel asked ques-

5070 UNITED STATES v. HIENG

tions in English, which Lim translated into Cambodian. Hieng

responded in Cambodian, and Lim translated the responses

into English. Kunkel testified that, during the interview,

Hieng denied that he knew there was marijuana in the house.

He claimed that he could not see the marijuana plants because

of his poor eyesight. Kunkel reported that when asked why he

could not smell the marijuana, Hieng responded that small

plants did not have an odor. Kunkel then asked how he knew

there was no odor. Hieng answered that he had heard it from

different people. When asked why another agent could smell

the marijuana when he was in the house, Kunkel said Hieng

responded that “it was like cigarette smokers. They don’t

smell the smoke, but non-smokers do.” Kunkel also testified

that Hieng said if he had known there was marijuana at the

house, he would have charged more than $800 per month.

The government did not call the interpreter, Rithy Lim, to

testify. On the first day of trial, immediately prior to the selec-

tion of the jury, the prosecution moved to exclude witnesses

from the trial, which the defendants joined. Lim was serving

as an interpreter during the proceedings and he mentioned that

he had received a subpoena from the government. Lim raised

the concern that if he was to be called as a witness he would,

perhaps, have to be excluded from the courtroom. The gov-

ernment explained that it only intended to call Lim if it

needed to impeach Hieng with a prior inconsistent statement,

and then only for the purpose of establishing the accuracy of

the translation of Hieng’s statements. The government clari-

fied that it intended to call the officer who took Hieng’s state-

ment to testify regarding the statement itself and did not have

a problem with Lim remaining in the courtroom during the

trial.

The district court responded that the “only potential . . . for

dispute is if Mr. Lim or Mr. Hieng disagreed with the inter-

pretation. Then you would have the right to call the interpreter

to ask him about the meaning in the Cambodian language ver-

sus the English language of what was said.” The court con-

UNITED STATES v. HIENG 5071

cluded that, “the interpreter is obviously not a percipient or a

fact witness to any of the events. This rather goes to his job

as an interpreter and the accuracy of his translation of an

interview.”

Hieng’s attorney neither objected to Lim’s presence at trial,

nor raised the possibility that Hieng would want to confront

Lim. Hieng’s attorney said,

My only point of contention is that I’m not so sure

the only issue is the accuracy of the Cambodian lan-

guage in this issue. What I’m trying to get at is it’s

possible, just as in speaking the English language,

that somebody doesn’t write it down verbatim and

they shorthand it. . . . I’m saying that regardless of

what was translated into English, it’s possible the

officer may have written something else down in

shorthand or whatever . . . .

The district court responded that Hieng would be entitled to

question the accuracy of the officer’s transcription of the

translated statement, and that accuracy of transcription is

always an issue whenever a statement is taken.

III.

A.

Hieng’s first argument is that the district court committed

plain error by admitting Special Agent Kunkel’s testimony

regarding the statements Hieng made during the post-arrest

interview on July 2, 2008 because the statements were inad-

missible under Federal Rule of Criminal Procedure 11(f) and

Federal Rule of Evidence 410 as statements made during plea

discussions. The government responds that the statements

were admissible because the circumstances of the interview

indicate that it was a proffer meeting, that is, a private meet-

ing with the government where Hieng will answer questions

5072 UNITED STATES v. HIENG

perhaps leading to a plea agreement. In such a meeting, Hieng

would have agreed that his statements could be used to

impeach him if he testified differently.

Hieng did not object to Kunkel’s testimony at trial. Hieng

argues now that the district court committed plain error by

failing to inquire, sua sponte, whether he had waived his

rights under Rule 11(f) and Rule 410. We now consider

whether the district court had such a duty.

[1] By arguing that Hieng made his statements during a

proffer meeting, the government concedes that the interview

likely constituted a plea discussion. However, a defendant

may waive his right not to have statements made during plea

discussions used against him. United States v. Mezzanatto,

513 U.S. 196, 210 (1995). The government never presented

the district court with a waiver agreement. It argues, however,

that Hieng’s failure to object to Kunkel’s testimony creates a

reasonable presumption that such an agreement exists.

The district court did not need to inquire, sua sponte,

whether Hieng had waived his right not to have the statements

he made during proffer discussions used against him. It may

be that a district court commits plain error if it allows the gov-

ernment to introduce evidence that is obviously inadmissible.

But it is not always obvious whether statements made during

a proffer discussion are inadmissible. After Mezzanatto, we

expect that prosecutors will routinely require, as a condition

for holding a proffer meeting, that suspects agree that their

statements may be used for impeachment. Where the govern-

ment has held a proffer meeting with a defendant and the

defendant testifies in his own defense at trial, a district court

would not be surprised if a defendant does not object to the

government’s use of prior inconsistent statements made dur-

ing the proffer meeting.

[2] Of course, a defendant’s failure to object at trial to the

admission of statements made during a proffer meeting does

UNITED STATES v. HIENG 5073

not necessarily mean that a valid waiver agreement exists. But

from the district court’s perspective, a defendant’s failure to

object to such evidence may be reasonably interpreted as indi-

cating that the defendant previously waived his rights under

Federal Rule of Criminal Procedure 11(f) and Federal Rule of

Evidence 410.

Hieng argues that this holding is contrary to the maxim that

“[c]ourts should ‘indulge every reasonable presumption

against waiver,’ and they should ‘not presume acquiescence

in the loss of fundamental rights.’ ” Barker v. Wingo, 407

U.S. 514, 525-26 (1972) (citations omitted). But even if we

assume that the statutory right to speak freely in proffer dis-

cussions without fear that statements will be used at trial is

fundamental, our holding does not release the government

from its burden of proof if the existence of a waiver is actu-

ally contested.

[3] We do not disagree with the proposition that if the

defendant informs the district court that he did not waive his

rights, the district court should be exacting in requiring the

government to show that he did. But the responsibility to put

that fact in issue rests with the defendant, not the court. Here,

where the prosecution used Hieng’s statements for a purpose

that would not be unexpected, given the prevalence of Mez-

zanatto waivers, the district court may have reasonably pre-

sumed that Hieng’s failure to object meant that he agreed that

his statements were admissible. The district court committed

no plain error in failing to inquire, sua sponte, whether Hieng

had waived his rights.

B.

Hieng also argues that the admission into evidence of Spe-

cial Agent Kunkel’s testimony violated his Sixth Amendment

right to be confronted with the witnesses against him. He con-

tends that the district court stripped him of the right to con-

front interpreter Lim, when it concluded, prior to the selection

5074 UNITED STATES v. HIENG

of the jury, that Lim was not a percipient or fact witness and,

therefore, did not need to testify. At trial, Hieng never

asserted a right to confront Lim and we, therefore, review for

plain error.

[4] In United States v. Nazemian we held that, under

appropriate circumstances, a person may testify regarding

statements made by the defendant through an interpreter with-

out raising either hearsay or Confrontation Clause issues

because the statements are properly viewed as the defendant’s

own, and the defendant cannot claim that he was denied the

opportunity to confront himself. 948 F.2d 522, 525-26 (9th

Cir. 1991). A defendant and an interpreter are treated as iden-

tical for testimonial purposes if the interpreter acted as a

“mere language conduit” or agent of the defendant. Id. at 528.

The district court must determine “whether the translated

statements fairly should be considered the statements of the

speaker” (i.e., whether the interpreter can be deemed a lan-

guage conduit) on a case-by-case basis. Id. at 527. In making

the determination, the district court must consider all relevant

factors, “such as which party supplied the interpreter, whether

the interpreter had any motive to mislead or distort, the inter-

preter’s qualifications and language skill, and whether actions

taken subsequent to the conversation were consistent with the

statements as translated.” Id. Where the defendant does not

object at trial, the reviewing court will hold there is plain error

only if the evidence in the record indicates that the district

court plainly should not have treated the interpreter as a lan-

guage conduit. Id.

[5] Hieng has not identified anything in the record suggest-

ing that Lim was anything other than a language conduit. The

record indicates Lim was a highly competent interpreter. He

interpreted not only at the interview in dispute, but also dur-

ing trial and in private meetings between Hieng and his attor-

ney. There is no indication that Lim had any motive to

mistranslate. The district court properly treated Lim as a mere

language conduit for Hieng. Under Nazemian, Hieng did not

UNITED STATES v. HIENG 5075

have any constitutional right to confront Lim because the

interpreted statements are directly attributable to Hieng.

Hieng argues that Nazemian has been overruled by Craw-

ford v. Washington, 541 U.S. 36 (2004), and its progeny. As

a three-judge panel, we are bound by circuit precedent unless

the United States Supreme Court or an en banc court of our

circuit has “undercut the theory or reasoning underlying the

prior circuit precedent in such a way that the cases are clearly

irreconcilable.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.

2003) (en banc). We now determine whether Crawford and its

progeny directly overruled Nazemian or whether the cases are

clearly irreconcilable.

In Crawford, the Supreme Court held that “testimonial”

hearsay statements are not admissible unless the declarant is

unavailable and the defendant had a prior opportunity for

cross-examination. 541 U.S. at 68. Crawford overruled Ohio

v. Roberts, 448 U.S. 56 (1980), which had held that hearsay

statements are admissible if the court determined that they

were sufficiently reliable. See Crawford, 541 U.S. at 61-62.

The Supreme Court further developed the principle pro-

claimed in Crawford in Melendez-Diaz v. Massachusetts, 129

S. Ct. 2527 (2009), and Bullcoming v. New Mexico, 131 S. Ct.

2705 (2011). In Melendez-Diaz, the Court held that “certifi-

cates of analysis” which reported the weight of a substance

and that the substance contained cocaine constituted testimo-

nial statements. 129 S. Ct. at 2532. Accordingly, the analysts

who signed them were witnesses for purposes of the Sixth

Amendment. Id. Similarly, in Bullcoming the Court held that

the Confrontation Clause was not satisfied when the prosecu-

tion introduced a forensic laboratory report containing a testi-

monial certification “through the in-court testimony of a

scientist who did not sign the certification or perform or

observe the test reported in the certification.” 131 S. Ct. at

2710.

5076 UNITED STATES v. HIENG

[6] These cases make it clear that, if a testimonial state-

ment is introduced, the Sixth Amendment requires opportu-

nity for confrontation of the person who made the statement.

They do not address the question whether, when a speaker

makes a statement through an interpreter, the Sixth Amend-

ment requires the court to attribute the statement to the inter-

preter. None of these cases, therefore, are in direct conflict

with our holding in Nazemian.

The cases are also not clearly irreconcilable because we can

apply Nazemian without running afoul of Crawford. We held

in Nazemian that whether the interpreter must be considered

a declarant, rather than a language conduit, is a threshold

inquiry, and that confrontation concerns do not even arise if

the statement may be fairly attributed directly to the speaker.

948 F.2d at 525-26. If a court were to hold that the statement

must be attributed to the interpreter, it would, under Craw-

ford, ask whether the statement, as applied to the interpreter,

was testimonial. If so, the statement could not be admitted

without opportunity for confrontation of the interpreter. But if

the court determines that a statement may be fairly attributed

directly to the original speaker, then the court would engage

in the Crawford analysis only with respect to that original

speaker. Where, as here, that speaker is the defendant, the

Sixth Amendment simply has no application because a defen-

dant cannot complain that he was denied the opportunity to

confront himself.

We recognize that there is some tension between the

Nazemian analysis and the Supreme Court’s recent approach

to the Confrontation Clause. Our threshold inquiry in

Nazemian which asks whether a translated statement may be

attributed directly to the original speaker and not be attributed

to the interpreter who literally uttered it, stems from principles

of the law of evidence. Abandoning Ohio v. Roberts, Craw-

ford might be read as essentially divorcing Sixth Amendment

analysis from the law of evidence. See Crawford, 541 U.S. at

51 (“Leaving the regulation of out-of-court statements to the

UNITED STATES v. HIENG 5077

law of evidence would render the Confrontation Clause pow-

erless to prevent even the most flagrant inquisitorial prac-

tices”).

On the other hand, Crawford and cases that follow it con-

tinue to use the vocabulary of the law of evidence in their

Sixth Amendment analyses. For example, the Court often uses

the term “hearsay” when referring to the type of out-of-court

statements that may require confrontation. See, e.g., Craw-

ford, 541 U.S. at 53 (“In sum, even if the Sixth Amendment

is not solely concerned with testimonial hearsay, that is its

primary object . . . .”); id. at 68 (“Where nontestimonial hear-

say is at issue, it is wholly consistent with the Framers’ design

to afford the States flexibility in their development of hearsay

law . . . .”); Davis v. Washington, 547 U.S. 813, 823 (2006)

(“We must decide . . . whether the Confrontation Clause

applies only to testimonial hearsay; and, if so, whether the

recording of a 911 call qualifies”). Further, even testimonial

statements may be admitted without confrontation if they are

offered “for purposes other than establishing the truth of the

matter asserted” and, therefore, constitute nonhearsay. Craw-

ford, 541 U.S. at 59 n.9, citing Tennessee v. Street, 471 U.S.

409, 414 (1985).

[7] We conclude that the Court’s recent Confrontation

Clause cases provide no clear guide with respect to the inter-

play, if any, between the Confrontation Clause and the law of

evidence. Even if there is some tension, our approach to inter-

preted statements is not clearly inconsistent with the Craw-

ford line of cases. Without a further pronouncement from the

Court, we conclude that Nazemian remains binding in this cir-

cuit.

C.

Hieng also contends that the district court erred by allowing

Detective Jensen’s testimony, which was based on hearsay

reports, to prove the total number of marijuana plants eradi-

5078 UNITED STATES v. HIENG

cated by the Fresno County Sheriff’s detectives. Hieng did not

object to this testimony on hearsay grounds at trial. His co-

defendant, Lem Phin, however, raised that objection on at

least four occasions. Even though Hieng did not join Phin’s

objection, we review for abuse of discretion rather than plain

error because the matter was sufficiently brought to the atten-

tion of the district court. See United States v. Hardy, 289 F.3d

608, 612 n.1 (9th Cir. 2002) (“Although Hardy’s counsel did

not object to the agent’s testimony, the objection by his co-

defendant’s counsel preserved the issue for both defendants”),

citing United States v. Brown, 562 F.2d 1144, 1147 n.1 (9th

Cir. 1977).

We conclude that the district court failed to apply the

proper hearsay analysis. However, we need not reverse if the

record indicates that Detective Jensen’s testimony was admis-

sible under established hearsay exceptions. “We may affirm

the district court’s evidentiary ruling on any grounds sup-

ported by the record.” United States v. Ibarra-Pino, 657 F.3d

1000, 1005 (9th Cir. 2011).

Detective Jensen did not base his testimony as to the total

plant count on his own personal knowledge. According to

Jensen, he and other detectives eradicated marijuana plants

growing in the vineyard row by row. Jensen testified that each

detective kept track of the number of plants he personally

eradicated as they went down each row and then reported

their tallies to him at the end of each row. Other detectives

who participated in the eradication corroborated Jensen’s tes-

timony. Jensen recorded each detective’s tally by writing it

down on a notepad or a piece of paper. The next day, Jensen

manually added the tallies, verified the accuracy of his addi-

tion, and entered the total number of plants in his report.

[8] Hieng correctly argues that Jensen’s testimony with

respect to the total number of plants was based on hearsay.

The Federal Rules of Evidence define hearsay as “a statement

that: (1) the declarant does not make while testifying at the

UNITED STATES v. HIENG 5079

current trial or hearing; and (2) a party offers in evidence to

prove the truth of the matter asserted in the statement.” Fed.

R. Evid. 801(c). The total tally offered by Jensen at trial was

a sum based on a number of statements made out of court by

a number of declarants. The government offered this total to

prove the truth of the matter asserted in the declarants’ out-of-

court statements. Because Jensen’s testimony was founded

almost entirely on hearsay, it should not have been admitted

unless all of the hearsay statements underlying the testimony

fit within an exception to the rule against hearsay. Fed. R.

Evid. 802, 805.

On three separate occasions at trial, the district court sus-

tained Phin’s objections to Jensen’s testimony on the ground

that it was based on hearsay and therefore, could not be

offered for its truth. However, after Jensen fully explained his

method for counting the plants, the district court overruled

Phin’s hearsay objection and admitted the testimony, “finding

that the reliability of the method was such that by each offi-

cer’s count being communicated and then written down, that

that goes to the weight, not the admissibility.”

The district court’s definitive ruling on Phin’s hearsay

objection does not invoke any of the established exceptions to

the rule against hearsay. The Federal Rules of Evidence do

not include a “reliability” exception. While reliability is the

touchstone of all the hearsay exceptions, the exceptions

themselves—not the trial judge’s intuitive conclusions—are

the criteria for whether hearsay evidence is sufficiently reli-

able to overcome the rule against hearsay.

The government argues on appeal that Detective Jensen’s

testimony fits within Rule 807, the residual exception to the

rule against hearsay. Detective Jensen’s testimony might very

well satisfy the general requirements of Rule 807.1 However,

1

Rule 807 generally provides for the admission of hearsay statements

under the following conditions:

5080 UNITED STATES v. HIENG

the government completely ignores Rule 807’s notice require-

ment. Under the rule, a hearsay statement is admissible “only

if, before the trial or hearing, the proponent gives an adverse

party reasonable notice of the intent to offer the statement and

its particulars, including the declarant’s name and address, so

that the party has a fair opportunity to meet it.” Fed. R. Evid.

807(b). Without any showing that the government provided

this required notice or that the notice should be excused, see

United States v. Bachsian, 4 F.3d 796, 799 (9th Cir. 1993), we

will not accept the government’s argument that the district

court properly admitted the testimony under Rule 807. There-

fore, we must review whether the hearsay statements which

Jensen relied on fall within established hearsay exceptions.

Jensen’s testimony involved three levels of hearsay, each of

which must conform to an exception in order for the testi-

mony to be admissible. Fed. R. Evid. 805. At the most basic

level, Jensen’s testimony incorporated the out-of-court reports

he received from other Fresno County Sheriff’s Department

detectives. These reports are admissible under the present

sense impression exception for statements “describing or

explaining an event or condition, made while or immediately

after the declarant perceived it.” Fed. R. Evid. 803(1).

Here, the eradication of the marijuana plants constitutes an

event that was perceived by the detectives who participated in

(1) the statement has equivalent circumstantial guarantees of

trustworthiness;

(2) it is offered as evidence of a material fact;

(3) it is more probative on the point for which it is offered than

any other evidence that the proponent can obtain through reason-

able efforts; and

(4) admitting it will best serve the purposes of these rules and the

interests of justice.

Fed. R. Evid. 807(a).

UNITED STATES v. HIENG 5081

it. These detectives described the event while it was taking

place by reporting the number of plants they had just counted

to Detective Jensen at the end of each row. Their reports to

Detective Jensen were present sense impressions.2

2

Judge Berzon disagrees with our application of the present sense

impression exception to the reports of the detectives who counted the mar-

ijuana plants. See Concurrence, Part I. Her fear that this ruling expands the

exception beyond its limits is not justified.

Contrary to Judge Berzon’s characterization, the detectives’ reports

were not “calculations derived from their observations.” Concurrence

5089. The detectives did not arrive at the reported numbers through a

mathematical process. They simply counted each plant that they observed.

Counting is an ordinary and fundamental aspect of observation. It is a way

to keep track of the details. Counting is not the sort of complex thought

process that interposes “an intermediate step between the receipt of the

present sense impression and the utterance.” See Edward J. Imwinkelreid,

The Need to Resurrect the Present Sense Impression Hearsay Exception:

A Relapse in Hearsay Policy, 52 How. L.J. 319, 345 (2009).

Judge Berzon views the detectives’ reports as a “cumulation of sense

impressions over a period of time, mediated through a thought process that

could easily contain errors.” Concurrence 5088. Essentially, Judge Berzon

considers each plant sighting to be a separate “event.” We need not inter-

pret that term so narrowly. Certainly, the term “event” as used in Rule

803(1) must be constrained by reasonable time limits. But that does not

mean an event must be instantaneous.

Here, the detectives reported the number of plants they saw at the end

of each row. We do not disagree with Judge Berzon that the eradication

of each row probably took “some minutes.” But the detectives’ reports are

sufficiently close in time to the actual observation that there is not a signif-

icant risk that memory loss caused faulty reports. The time each detective

may have waited between viewing the plants and reporting their counts

did not give them a substantial opportunity to reflect or deliberate as to

whether they would provide an accurate count or an inflated one.

Judge Berzon expresses a concern that the detectives might not have

had to testify before the jury if the present sense impression exception

applies. But if hearsay statements are testimonial, then the Confrontation

Clause will ensure that the declarant is subject to cross-examination. If the

Confrontation Clause does not apply and evidence is sufficient to bring a

statement within an exception to the hearsay rule, there is no reason to

insist on in-court testimony.

5082 UNITED STATES v. HIENG

The second level of hearsay in Detective Jensen’s tally

sheet is the note pad or paper upon which Jensen recorded his

own tallies and the tallies reported by his fellow detectives.

The government did not attempt to introduce Jensen’s tally

sheet into evidence, but Jensen testified that the total he

entered in his report was the sum of the tallies he recorded on

the tally sheet. This tally sheet falls comfortably within the

exception for recorded recollections. Fed. R. Evid. 803(5). A

recorded recollection is “[a] record that: (A) is on a matter the

witness once knew about but now cannot recall well enough

to testify fully and accurately; (B) was made or adopted by

the witness when the matter was fresh in the witness’s mem-

ory; and (C) accurately reflects the witness’s knowledge.” Id.

Detective Jensen did not recall the number of plants he per-

sonally eradicated. However, he counted those plants as he

was eradicating them and, while the matter was fresh in his

memory, accurately recorded that count on his tally sheet. The

tally sheet, therefore, contains Jensen’s recorded recollection

of his own plant counts. With respect to the other detectives’

counts, Detective Jensen testified that he accurately recorded

the numbers each detective reported to him immediately after

they gave him their verbal reports, while the matter was fresh

in his mind. Therefore, the tally sheet also contains a record

of Detective Jensen’s recollection of the other detectives’

utterances of their present sense impressions. The tally sheet

would, therefore, be admissible notwithstanding its hearsay

character.

Finally, we have Detective Jensen’s formal report. Detec-

tive Jensen based his testimony on this hearsay document. We

must determine, at least with respect to the total plant count,

whether Jensen’s report constitutes a recorded recollection.

Detective Jensen testified that, on the day after the eradica-

tion, he manually calculated the sum of the plant counts

recorded on the tally sheet and entered the total in his report.

The total of the tallies recorded on the tally sheet is a matter

UNITED STATES v. HIENG 5083

that Detective Jensen once knew because, at one point in time,

he had the tally sheet in front of him and personally per-

formed the addition. However, he could not recall that total

accurately at the time of the trial because he did not have the

tally sheet before him. Jensen recorded his recollection of the

total in his report immediately after calculating it from the

tally sheet, while it was fresh in his mind. He testified that the

total he recorded in his report accurately reflected his knowl-

edge regarding the total in the tally sheet. Therefore, Detec-

tive Jensen’s statement in his report as to the total number of

marijuana plants qualifies as a recorded recollection with

respect to the total number of plants recorded on the tally

sheet. See Fed. R. Evid. 803(5).

[9] In sum, while the district court did not rigorously apply

the rules of evidence to each level of hearsay underlying Jen-

sen’s testimony, it ultimately reached the correct result.

Detective Jensen’s testimony regarding the total plant count

was based on a recorded recollection of the numbers listed on

his tally sheet. The tally sheet, in turn was a recorded recol-

lection of Jensen’s own activities and the verbal reports of his

fellow detectives. Finally, the reports of the other detectives

were present sense impressions. The testimony was admissi-

ble because each level of hearsay upon which it was based fell

within an established exception to the hearsay rule. See Fed.

R. Evid. 802, 805. Therefore, there was no reversible error.

D.

Hieng’s conviction triggered a statutory minimum sentence

of imprisonment for ten years. 21 U.S.C. § 841(b)(1)(A)(vii).

He contends that the district court should have relieved him

from the statutory minimum under the safety valve of 18

U.S.C. § 3553(f). The district court refused to apply the safety

valve because it did not find that Hieng had “truthfully pro-

vided to the Government all information and evidence [he

had] concerning the offense.” 18 U.S.C. § 3553(f)(5). We

review the district court’s factual finding for clear error.

5084 UNITED STATES v. HIENG

[10] The district court’s finding that Hieng failed to prove

that he truthfully provided to the government all the informa-

tion and evidence he had is not clearly erroneous. Based on

his testimony at trial, it appears the only information Hieng

provided to the government regarding the offense was that

somebody named Prasit hired him to sign a contract and to

stay at the house at night. He denied that he had any knowl-

edge of the marijuana growing operation. However, Hieng’s

conviction indicates that the jury did not believe his testimony

that he had no knowledge of the marijuana growing operation.

If Hieng actually did know about the marijuana growing oper-

ation, it would be logical to infer that he had more informa-

tion or evidence about the operation than he had previously

provided. Given the conflicting evidence, the district court

could well have found that Hieng had withheld information or

evidence that he had concerning the marijuana growing opera-

tion.

[11] Hieng argues that the district court committed clear

error because, in delivering its sentence, it misstated some of

the evidence that had been presented. For example, in pro-

nouncing the sentence from the bench, the district court mis-

takenly said that Hieng had been recruited by Vanthy Chan,

someone he knew, and that Hieng said he had never gone into

the backyard. However, these were not the facts upon which

the district court based its finding that Hieng was not entitled

to safety valve relief. Rather, the district court found that “it

is not believable that Mr. Hieng would not have smelled, seen

and known of the presence of the marijuana.” Sentencing Tr.

at 28:2-3 (Sept. 21, 2009). The court rejected Hieng’s claim

to safety valve relief because “[t]he Court, like the jury, does

believe that there was very substantial evidence to show Mr.

Hieng’s knowledge under the totality of the circumstances.

He was staying at a marijuana grow site. And an indoor mari-

juana grow as well.” Id. at 28:24-29:3. The evidence that the

district court actually relied on to find that Hieng must have

known about the marijuana growing operation supports that

finding. Its inference from that finding that Hieng had more

UNITED STATES v. HIENG 5085

information or evidence than he had previously shared with

the government was permissible. Therefore, there was no

clear error in the district court’s factual findings.

E.

Finally, Hieng contends that even if errors committed by

the district court were harmless when considered individually,

their cumulative effect resulted in an unfair trial. As explained

above, Hieng has not shown that the district court committed

multiple errors, harmless or not. Furthermore, the record is

not sufficiently developed to allow us to rule on Hieng’s half-

hearted argument that his trial counsel failed to provide effec-

tive assistance. To the extent cumulative error is a valid doc-

trine, it is simply inapplicable here.

AFFIRMED.

BERZON, Circuit Judge, concurring:

I concur in the majority opinion with one exception: I can-

not agree with the assertion on pages 5080-81 that the report

by the detectives who “eradicated” the marijuana plants as to

the number of plants they counted qualifies as a present sense

impression under Rule 803(1) of the Federal Rules of Evi-

dence. As I explain in Parts I and II of this concurrence,

applying the present sense exception to the facts of this case

profoundly distorts the exception and applies it far beyond the

realm supported by its underlying rationale.

Indeed, neither the parties nor the district court ever sug-

gested that this exception applied here—the majority has

inserted it into this case on its own initiative. The government

argued that the admission of the officers’ count of the mari-

juana plants should be affirmed based on Federal Rule of Evi-

dence 807, the residual exception to the hearsay rules. I agree.

5086 UNITED STATES v. HIENG

The officers’ count easily falls within the scope of Rule 807,

and applying that Rule implicates none of the problems cre-

ated by applying the present sense impression exception.

In addition, as I explain in Part III, although I agree with

the opinion’s conclusion that United States v. Nazemian, 948

F.2d 522 (9th Cir. 1991), is not so “clearly irreconcilable,”

Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en

banc), with Crawford v. Washington, 541 U.S. 36 (2004), as

to permit a three-judge panel to overrule Nazemian, I believe

the continued vitality of Nazemian after Crawford is an issue

that merits en banc review in an appropriate case.

I.

The opinion relies on the present sense impression excep-

tion, Fed. R. Evid. 803(1), to support the admissibility of

Fresno County Sheriff’s Department deputies’ statements

regarding the number of marijuana plants in the defendant’s

field. As they destroyed the marijuana row-by-row, the depu-

ties tallied the number of plants they had picked and gave

those numbers to Detective Jensen, who recorded their state-

ments. According to the opinion, the deputies’ calculations

were descriptions of the destruction of the marijuana field and

therefore admissible as present sense impressions. That appli-

cation, however, extends Rule 803(1) well beyond its limits.

The government did not argue before the district court nor

before us that the present sense impression applies. The dis-

trict court did not rule on the basis of this exception. We

therefore have had no briefing on the issue. That it occurred

to no one previously associated with this case that the present

sense impression exception might apply is reason enough to

make its application suspect. Moreover, while imaginative,

the majority’s analysis bends that exception out of shape in a

manner that, in other cases, could seriously undermine the

hearsay rules.

UNITED STATES v. HIENG 5087

I begin by noting that what while the majority’s view of

what constitutes a present sense impression leads, on the facts

of this case, to a relatively narrow admission of evidence, its

application to other cases could lead to a much broader excep-

tion. Here, because the deputies’ counts of the marijuana

plants were testimonial, they were required under the Con-

frontation Clause to testify, thereby allowing the jury to assess

the officers’ credibility. See Crawford, 541 U.S. at 68-69.

However, if the calculations were nontestimonial—for exam-

ple, if the officers were reporting their counts in order to coor-

dinate counting efforts rather than to record evidence, see

United States v. Solorio, 669 F.3d 943 (9th Cir. 2012)—there

would be no requirement that they testify, so evidence of their

calculations could be admitted without any opportunity for the

jury to assess their credibility. Under Rule 807, in contrast,

only evidence that “is more probative on the point for which

it is offered than any other evidence that the proponent can

obtain through reasonable efforts” is admissible. Fed. R. Evid.

807(a)(3). Therefore, if the residual exception were to apply,

the officers would ordinarily still be required to testify,

whether or not they were so required under the Confrontation

Clause, for such testimony would be the most probative evi-

dence of their actions. That is, hearsay evidence would be

admissible under Rule 807 only to the extent that it was not

available via direct testimony. Thus, Rule 807 permits a much

narrower exception to the hearsay rules than does the majori-

ty’s expansion of Rule 803.

This analysis highlights the problem with the notion that

Jensen was recording a present sense impression: In fact, he

was not recording the officers’ sense impressions when they

were collecting the marijuana plants. Instead, what Jensen tes-

tified to was the result of a mental process—counting a series

of marijuana plants while they were collected, and, ultimately,

determining how many there were in total. Because of the

large number of marijuana plants, the detectives could not

determine the total number of plants just by looking at them,

but had to interpose over some period of time—some minutes

5088 UNITED STATES v. HIENG

at least—a mental method for determining the number of

plants. This sort of cumulation of sense impressions over a

period of time, mediated through a thought process that could

easily contain errors, is neither “present” nor a “sense impres-

sion,” and is therefore not encompassed by Rule 803(1).

Rule 803(1) provides a narrow exception to the hearsay

rule for statements “describing or explaining an event or con-

dition, made while or immediately after the declarant per-

ceived it.” The exception is grounded in the premise that

“substantial contemporaneity of event and statement negate

the likelihood of deliberate or conscious misrepresentation,”

but “[s]pontaneity is the key factor.” Fed. R. Evid. 803(1)

advisory committee’s note. To qualify as a present sense

impression, a statement must occur simultaneously with the

event, although “a slight lapse is allowable” if “precise con-

temporaneity is not possible.” Id.

The reason present sense impressions are considered inher-

ently reliable is because statements contemporaneously

describing an event are unlikely to reflect memory loss or pro-

vide an opportunity to lie. See Douglas D. McFarland, Present

Sense Impressions Cannot Live in the Past, 28 Fla. St. U. L.

Rev. 907, 914 (2001). The fundamental pivot of the exception

is the “nature of the thought process producing the statement

rather than the substantive content of the statement.” Edward

J. Imwinkelreid, The Need to Resurrect the Present Sense

Impression Hearsay Exception: A Relapse in Hearsay Policy,

52 How. L.J. 319, 345 (2009). Closeness in time between the

statement and the event is therefore critical in eliminating the

unreliability that is introduced when declarants have the

opportunity to reflect on and interpret the event. See id. Con-

temporaneous expression limits declarants’ ability to lie or

misremember; “[w]hen the thought process is complex,

involving an intermediate step between the receipt of the pres-

ent sense impression and the utterance,” the statement no lon-

ger qualifies. Id.

UNITED STATES v. HIENG 5089

It is true, of course, that mental processes interpret what the

eyes see or the ears hear, so that not all opportunity for error

through those processes is eliminated through contemporane-

ity. Some people are colorblind and others can only hear lim-

ited tone ranges, so they will misreport what they

contemporaneously perceive. But the present sense exception

seeks to minimize the opportunities for mistake or prevarica-

tion that occur when mental processes beyond those necessary

to connect a sense impression to a verbal description. The

exception’s “language, rationale, and history do strongly sug-

gest that . . . there should be no delay beyond an acceptable

hiatus between perception and the cerebellum’s construction

of an uncalculated verbal description.” Jon R. Waltz, The

Present Sense Impression Exception to the Rule Against

Hearsay: Origins and Attributes, 66 Iowa L. Rev. 869, 880

(1981) (emphasis added).

Here, the deputies’ statements as to the number of plants

they had collected were calculations derived from their obser-

vations, but were not reports of the observations themselves.

Such purposeful analysis of sense impressions after the fact is

not covered by the present sense impression exception.

Because they did not simply report each plant as they saw it

but rather, at the end of their collecting and counting process,

reported to Jensen the results of their calculation, the officers

both had time to reflect and therefore not to tell the truth, and,

more importantly, the opportunity to make mistakes in the

calculation.

Our Circuit’s caselaw, as well as that of other circuits, sup-

ports a narrow interpretation of the present sense impression

exception consistent with this analysis:

• “[T]o qualify under either [FRE 803(1) or 803(2)], an out-

of-court statement must be nearly contemporaneous with

the incident described and made with little chance for

reflection.” Bemis v. Edwards, 45 F.3d 1369, 1373 (9th

Cir. 1995).

5090 UNITED STATES v. HIENG

• “The theory behind [the present sense impression, excited

utterance, and state of mind] exceptions is that the greater

the circumstances for misrepresentation, the less reliable is

the declaration. . . . [T]he fact that [the defendant] went

through several drafts indicates that he had ample time to

reflect upon his statements. Thus, any evidence provided

by the letter was unreliable.” United States v. Faust, 850

F.2d 575, 586 (9th Cir. 1988) (internal citations and quota-

tions omitted).

• “In making the foundational inquiry on admissibility under

[FRE 803(1) (present sense impression), 803(2) (excited

utterances), or 803(3) (state of mind)], the court must eval-

uate three factors: contemporaneousness, chance for

reflection, and relevance.” United States v. Ponticelli, 622

F.2d 985, 991 (9th Cir. 1980), overruled on other grounds

by United States v. De Bright, 730 F.2d 1255 (9th Cir.

1984).

• “The declarant makes a statement describing the event at

or very near the time of the observation . . . We admit the

statement because the circumstances under which it was

given—immediately after an observation—diminish sub-

stantially the opportunity for fabrication.” United States v.

McElroy, 587 F.3d 73, 86 (1st Cir. 2009).

• “[T]he temporality requirement must be rigorous because

the passage of time—or the lack thereof—is the effective

proxy for the reliability of the substance of the declara-

tion.” United States v. Green, 556 F.3d 151, 155-56 (3d

Cir. 2009). There, the declarant’s statement was problem-

atic not only because of a 50 minute lapse in time, but also

because he was responding to requests by the DEA to

explain the event. Id.

• “A declarant who deliberates about what to say or pro-

vides statements for a particular reason creates the possi-

bility that the statements are not contemporaneous, and,

UNITED STATES v. HIENG 5091

more likely, are calculated interpretations of events rather

than near simultaneous perceptions.” United States v.

Woods, 301 F.3d 556, 562 (7th Cir. 2002).

Again, although the extension of the present sense impres-

sion exception to the circumstances of this case may seem rel-

atively harmless, I do think that is because the detectives did

testify to their actual sense impressions, and only could not

testify as to the number they reported. We have to consider

this case, however, as if they did not testify, because if the

present sense impression exception does apply, they might not

have had to testify at all. I do not see how that scenario could

possibly comport with the basic underpinnings of the hearsay

rule, or with the limited scope of Rule 803(1).

II.

I am not suggesting that we should reverse. Instead, I

would rely on what the government does argue—that the

catchall hearsay exception applies. The opinion indicates that

Rule 807 is substantively appropriate, but that the lack of pre-

trial notice is fatal. I don’t see why that is so.

First, Hieng has not objected that he received insufficient

notice. As far as I can determine, the current record does not

indicate whether there was sufficient notice. For all we know,

there may have been.

More substantively, even if there was not proper pretrial

notice, there was, in fact, a good deal of notice during the trial

—before the testimony was introduced—as to how the gov-

ernment wanted to proceed. As the opinion explains, the gov-

ernment tried to introduce Jensen’s calculations several times,

but the district court sustained hearsay objections. Eventually,

however, the methodology was fully explained, and the dis-

trict court admitted the evidence. There is no indication what-

soever that notice of an intent to invoke Rule 807 would have

made any difference, and the evidence was in no way sprung

5092 UNITED STATES v. HIENG

on the defense. “[F]ailure to give pretrial notice will be

excused if the adverse party had an opportunity to attack the

trustworthiness of the evidence.” United States v. Bachsian, 4

F.3d 796, 799 (9th Cir. 1993).

Moreover, examined from the perspective of Rule 807, and

given that the detectives did testify (and that, as the opinion

explains, once the totals reported to Jensen are in evidence,

other hearsay exceptions cover the tally sheet and report). the

only “hole” that has to be covered by Rule 807 is quite nar-

row. The district court was careful to ensure that the officers’

information was trustworthy, that other evidence toward the

same end was not available, and that admission of the evi-

dence served the purposes of the evidence rules. See Fed. R.

Evid. 807(a). The court insisted that each officer testify first

as to his methodology in extracting, counting, and reporting

the number of marijuana plants. Proceeding in this way

ensured that the jury had the chance to assess the credibility

of each of the officers who collected the plants. Further, Rule

807 is context-specific, and so, unlike the majority’s expan-

sion of the present sense impression exception, does not

threaten in future cases to leave the hearsay rule in the dust.

In sum, my concern is that we not bend seriously out of

shape a hearsay exception grounded in precepts not here

applicable. Although the role of the present sense impression

exception here is narrow, if applicable, it could allow a trial

to proceed without the testimony of the detectives who actu-

ally saw and collected the marijuana plants, opening up a

huge hole in the hearsay rule. I would hold instead that, on

this record, the catchall hearsay exception applies and that

either the notice requirement was waived because not raised

by Hieng or any lack of notice was harmless.

III.

In my view, the holding in Nazemian rests, at bottom, on

a pre-Crawford understanding of the unity between hearsay

UNITED STATES v. HIENG 5093

concepts and Confrontation Clause analysis. Moreover, its

ultimate conclusion—that a translator’s out-of-court version

of a testimonial statement need not be subject to cross-

examination at trial—seems in great tension with the holdings

of Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and

Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), that labo-

ratory reports may not be admitted without testimony by the

individuals who conducted the laboratory tests. Translation

from one language to another is much less of a science than

conducting laboratory tests, and so much more subject to error

and dispute. Without the ability to confront the person who

conducted the translation, a party cannot test the accuracy of

the translation in the manner in which the Confrontation

Clause contemplates. I therefore believe that this issue should

be considered en banc at some juncture.

Here, however, the issue was not raised at trial, so our

review is for plain error, and the translator was in fact in the

court room and could have been called, introducing an addi-

tional consideration—whether it matters that the government

did not call a translator who was readily available to the

defense. Quite possibly it does, but plain error review under

these circumstances would contort and complicate our consid-

eration of a novel constitutional issue. I would therefore await

a case in which the question was properly raised at trial and

would then hear that case en banc.